Topless bylaw unlikely
Aldermen unclear how to handle issue despite public upset

Lee Prokaska, Municipal Affairs Reporter
The Spectator

City politicians have been taking a lot of heat on the issue of women going topless in public, but most concede their hands are tied.

"I have fielded about 50 calls on this issue and it's an emotional and controversial one," said Ward 5 Alderman Fred Eisenberger, who is also chairman of the city's parks and recreation committee. "It's really unclear what we can do about it."

Aldermen say they have been inundated with calls from people complaining they don't want to see topless women in Hamilton.

Earlier this week, Municipal Affairs Minister Al Leach told a Toronto newspaper municipalities should impose dress codes through local bylaws if citizens are opposed to women baring their breasts in public.

But Eisenberger dismisses that as untenable.

"If it was that simple, we would have done it by now," he said. "I would be happy to hear from Mr. Leach exactly how a municipal bylaw could be enforced and take precedence over a court of appeal ruling."

An Ontario Court of Appeal ruling last December has left municipalities across the province scrambling to find ways to deal with women who choose to doff their tops in public.

The three-member panel overturned the lower court conviction of Guelph's Gwen Jacob who had been charged with committing an indecent act for taking off her shirt and walking around the city's downtown on a hot summer day in 1991.

While most aldermen believe the city can't prevent toplessness through a bylaw, Ward 8 Alderman Don Ross advocates giving it a try.

"I would have no problem supporting a bylaw preventing this behaviour," he said. "It would likely be challenged in the courts, but it's probably worth taking that step.

"People are looking to their civic leaders to do something about this," Ross maintains. "I think we have to do something because I believe the community would like to know there is a standard."

Eisenberger says city council can't legislate behaviour outdoors in public places, but rules can be set in some places, such as municipal pools, where dress codes have been established to prevent women swimming topless.

Similarly, the Hamilton Street Railway has a decades-old policy that states: "no shirt, no shoes, no ride."

"This policy is applied equally to men and women," said HSR spokesman John Gosgnach, who noted a shirtless woman tried to board an HSR bus a couple of weeks ago.

Gosgnach said the woman agreed to put on her top when the driver explained the policy.

"For us it is, in part, a matter of liability," he said.

"The more bare skin, the more risk of abrasion if someone falls. As we understand it, we have the right to have a rule like this, just as we have a right to bar people from riding the bus for other reasons, such as committing violent acts."

Because of the court of appeal ruling, Hamilton-Wentworth police have not been laying charges against women who take off their tops outside.

"Since the appeal, that case law becomes the law," said Staff Sergeant Bryan Barker of the vice and drug section. "We're not condoning nudity, but our hands are tied on this one."

He said charges would be possible if, for example, public safety were endangered, if a disturbance were created or if a woman went topless for commercial gain.

Ward 1 Alderman Mary Kiss has fielded telephone complaints from her constituents, and she has serious concerns herself about the safety of women who choose to bare their breasts. But Kiss doesn't see what the municipality can do.

Similarly, Ward 4 Alderman Dave Wilson has had a "barrage" of complaints about the issue, which he believes should not be taking up the time of a municipal council.

"The Criminal Code is a federal law and there's nothing we can do about it at the municipal level," he said.

"We're supposed to be here to fix potholes and repair roads, not decide how people should be clothed."

TOPLESS PRIMER

The cover-up quandary results from a Dec. 10, 1996 decision by the Ontario Court of Appeal, the province's highest court.

The three-member court overturned the conviction of Gwen Jacob, who was charged with committing an indecent act in 1991 after taking off her shirt on a hot summer day and walking around downtown Guelph.

The ruling means:

Simply taking off your shirt in public is not an indecent act and, therefore, is not a criminal offence.

But it is still illegal for a woman to be topless for sexual, commercial, harmful or degrading purposes.

There is no bylaw in Hamilton dealing with the issue of toplessness, although dress codes are in effect at municipal pools, on Hamilton Street Railway buses and at Ivor Wynne stadium during Hamilton Tiger-Cat football games.